Professional Conduct

Professional conduct is a topic of frequent comment and concern among lawyers and judges. Sometimes when we face sharp legal practice, where an opponent insists on rigorous adherence to deadlines, uses discovery tactics as a strategic sword, or resists compromise on what we view as nondispositive litigation disputes, we voice a negative opinion of that opponent's professionalism (if only to ourselves). Or when we encounter that individual who exists in every walk of life, the out and out boor who is just generally unpleasant, we are tempted to characterize the boor's boorishness as unprofessional conduct.

There are those who serve as apologist for certain conduct occasionally deemed unprofessional. Some attorneys would agree that an aggressive, challenging approach in a discovery deposition may well be appropriate and within the bounds of professionalism so long as the questions are fair and the rules of court are observed. Zealous advocacy must allow for a certain amount of zeal, after all.

It seems to me that there are two kinds of genuine unprofessional conduct. One is the easy kind to spot and deal with: Dishonesty about facts and motives. For trial lawyers and litigators, our practice is premised upon contention. Perhaps contradictorily, it is for this very reason that a high degree of trust between opposing counsel is necessary for us to function in a professional fashion. When we cannot trust opposing counsel, the goals of litigation---a search for the truth and fashioning an appropriate remedy for the actionable wrong---are thwarted. Now this can be difficult, especially for younger lawyers who do not yet have a reputation for either trustworthiness or knavery. But when we can let our word be our word, and our opposing counsel can take it to the bank, this is a good thing. Some of my favorite conversations with opposing counsel have gone along these lines: "I can agree with you about Disputes 1 and 2. But my client simply does not agree with your position on Disputes 3 and 4, and that is where our overall disagreement will be focused." Such a discussion can pave the way for dealing effectively with discovery disputes and other matters of potential disagreement.

Overt dishonesty is thankfully rare. Instead we see a great deal of gamesmanship, of partial disclosure or holding back of certain facts or issues because of the perception that there is a strategic advantage to doing so. Of course, I do it too sometimes. Is that unprofessionalism? It certainly can erode trust when "the full story" comes out. As an aside, for what it's worth, I try to approach every opposing attorney, even ones with whom I have not worked very much, with an attitude of trust. The ones I immediately suspect of untrustworthiness are the ones who act as if they don't trust me. I sometimes want to tell them, "You know, I know you don't believe me, but I am not lying to you."

The other, much more problematic type of lack of professional conduct is what I will call negligent unprofessionalism. The archetype is failure to return telephone calls. Let me say upfront that I have been and often still am guilty of not returning calls as timely as I am sure my opponent or colleague would prefer---after all, he or she called me on his or her time, when an answer was needed then. But I do pride myself on working hard to return calls or at least send a text or e-mail message acknowledging the call, even if only to say, "I don't have an answer now." Lack of attentiveness and responsiveness is a type of unprofessionalism that is insidious and widespread. It happens not because an attorney acts on an intent to mislead or chat, but because we get busy or lazy or overwhelmed with other, non-lawyer stuff. I say all of us because it genuinely does happen to all of us sometimes.

There were times, not so very long ago, when lawyers literally rode circuit with the judges, when opponents had to share bunks, tables and wheels. The practice of law has changed mightily since then, and continues to change at an inconceivably rapid pace. While I do not pretend that there were any "good old days" when professionalism was de rigueur, I do believe it is simply easier now, where things are of necessity less personal, to fail to genuinely appreciate the commitment to professionalism we all made upon becoming lawyers. But most lawyers, most of the time, do seek to conduct themselves in a professional fashion. I would urge us all, myself included and first of all, to strive toward that goal for all lawyers, all the time.